Cell Phone Searches Do Not Require More Restrictive Warrants

Feb. 5, 2016 (Mimesis Law) — The Supreme Court’s decision that cell phone searches require a warrant isn’t yet two years old. So, not surprisingly the contours of cell phone search warrants are still an area of active litigation. In reviewing such a warrant, the Massachusetts Supreme Court, in Commonwealth v. Dorelas, wrote:

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search. Rather, “[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found” (emphasis added). See United States v. Ross, 456 U.S. 798, 820 (1982).

From reading the opinion, it doesn’t sound like the photos in question were necessarily a key piece of evidence given a totality of the circumstances. Justice Lenk and Cushing are right to predict that the day is soon coming where a more pointed argument will be made for exclusion. When that day comes, the analogy that everything on a cell phone is fair game with an overbroad warrant will be like fitting a square peg in a round hole.

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise. To call a phone a house may keep cops from accessing contents without a warrant, but it does little to prevent them from accessing everything once a warrant is in hand.

Cushing’s obvious concern about the breadth of information being searched is understandable. Indeed, that concern forms much of the intellectual underpinnings of the Riley opinion. Yet on the issue of cell phone searches, Cushing’s call that courts should “demand more from them as the stakes rise.” Despite the relative uniqueness of cell phones, this is the wrong way to apply the Fourth Amendment.

The Dorelas case frames the issue involved in cell phone warrants as one related to the particularity requirement:

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.

If Cushing wants courts to demand more from law enforcement before issuing a warrant, then it will first require a departure from precedent:

The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized…The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.

Cushing seems to want exactly the sort of condition precedent that the Supreme Court has rejected. Moreover, these restrictions would often thwart investigations. Consider a search warrant sought for suspected marijuana grow house. The officers have observed people coming and going at different hours, found evidence of marijuana cultivation from trash pulls, received electric and water bills that demonstrate unusual consumption, and received tips from informants about marijuana sales there.

Yet, the officers have never seen the inside of the house. Even though they’ve developed probable cause that a marijuana grow is going on inside a particular house, they don’t know certain facts, such as how many marijuana plants are growing, the weight of dried plants, the amount of money inside, or the exact location of any of those items. Thus, they could never provide those facts to the magistrate. If the officers had to provide such facts in the name of particularity, then they could never get the warrant despite strong evidence of marijuana cultivation.

In another matter, suppose that a child, who is the victim of sexual abuse, discloses the abuse and states that the suspect used his cell phone during the abuse. But she’s not sure if the suspect took video or pictures. Also she relates that during this period of abuse, the suspect texted her potentially incriminating messages.

Unfortunately for the officers, the victim’s phone was recently traded in for a new one; the suspect’s phone is the only place where that evidence likely exists. In such a case, the officer can’t describe the type of image files, the dates of the texts, nor can the officer predict where in the phone the files will be located. It’s probably not kept in a folder called “Criminal Activity.” Should the lack of exacting details thwart the magistrate from issuing the warrant? It’s hard to imagine why it should.

In both cases you have probable cause to believe both that the owner has committed a crime and the place to be searched will have evidence of that crime. There is not a sufficiently good reason for demanding more of an officer seeking a search warrant for a cell phone rather than a home.

In addition, suppose while searching the home with the suspected marijuana grow the officers discover firearms in the bedroom closet of the suspect who has felony convictions, but firearms weren’t mentioned in the warrant. Under the plain view doctrine, there is typically no issue with the seizure.

Likewise, if while examining the data on the cell phone, the investigator discovers text messages to other victims, then the result should be the same. In both cases the officer was conducting a legal search and incidentally uncovered evidence of other crimes. Law enforcement should not be held to a greater standard with electronic data than they would be for physical evidence in a home.

Finally, the manner in which the data is collected and searched is an important consideration often overlooked. Usually the cell phone data is mirrored on an external drive. Then those mirror files are searched using special software from a company like Cellbrite. Someone is not going to scroll through the physical phone to find items.

The file structure set by the phone or the user has little bearing on how the data is searched. For example, if a keyword search is used, then it will find documents, texts, social media posts, metadata, and file names with those keywords. In addition, some of the data might have been “deleted” and must be recovered outside of the normal file tree. Further, there are certain apps that will hide data such as photos. So, deleted or hidden data would not usually show up outside a forensic search.

Because the methods the examiner will use to search and the locations that must be searched cannot often be known prior to the search then the court cannot place restrictions on where to search beforehand. Even if the house analogy is not a perfect fit, it expresses well the need to grant law enforcement wide range to conduct a reasonable cell phone search.

Everyone want their privacy protected, which is the purpose of prohibiting warrantless searches of cellphones, but courts shouldn’t be holding cellphone searches to an even higher standard.

Continuing the strained metaphor of phone equals home, I, perhaps crazily, view the compartmentalized apps on my cell phone akin to a safe deposit box rented out from my financial institution. “The man” may be able to locate my key to that lock box while executing a search warrant upon my home, and good for them. But if they fail to get a second warrant prior to opening said box, my lawyer is going to have an easy time excluding anything that may have been discovered. Not sure why this shouldn’t apply to my phone.

To put this a little more clearly: a search warrant for evidence contained within my phone does not and should not equal a search warrant for evidence contained within all of the Facebook/Google/Apple/Verizon/whatever data centers.

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